R v. Secretary of State for the Home Department, Ex parte Ekinci
- Author: High Court (Queen's Bench Division)
- Document source:
-
Date:
26 March 1992
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte EKINCI
Queen's Bench Division
[1992] Imm AR 464
Hearing Date: 26 March 1992
26 March 1992
Index Terms:
Political asylum -- Turkish Alevite Kurd -- refusal of application by Secretary of State -- whether decision making process unreasonable -- whether analysis on an individual basis of events mentioned by the applicant showed that the Secretary of State had failed to take into account their overall and cumulative effect -- whether Secretary of State entitled to carry over into his assessment of subsequent events an adverse view of the applicant's credibility he had formed on evaluation of accounts of earlier events -- whether the Secretary of State had erred in giving little weight to what he had assessed as low level political activities without taking due account of the serious view taken by the authorities of such activities.
Held:
The applicant for judicial review was a Turkish Alevite Kurd whose application for political asylum had been refused by the Secretary of State after full investigation. Counsel argued that the Secretary of State's approach as reflected in the various letters he had written to the applicant's representatives, had been wrong in law. The Secretary of State had analysed each of the incidents in the applicant's history on which reliance was placed in putting forward his claim, but had failed to assess the overall and cumulative effect of those incidents. He had formed an adverse view of the applicant's credibility on the basis of accounts of some early events as recounted by the applicant: that view had wrongly coloured his assessment of later events. He had characterised the applicant's claimed political activities as of a low level nature, but had failed to take account of the severe penalties attached to even such low level activities. The court analysed in great detail the decision making process followed by the Secretary of State. Held 1. Although the Secretary of State had failed in one particular to give as full consideration to a matter as might have been desirable, his approach generally to the case could not be faulted. 2. In particular, it was necessary for him to assess the credibility of the applicant, for such cases depended on an assessment of credibility and an evaluation of probabilities. 3. In that regard he was entitled to carry over into his analysis of later events as recounted by the applicant, his assessment of credibility based on the evaluation of earlier events. 4. It could not be asserted, on the facts, that by his analysis of events on an individual basis, the Secretary of State had ignored the cumulative effect of those events. 5. The weight he had given to various elements in the evidence, in the light of his assessment of the credibility of the applicant, was a matter for him and not for the court.Counsel:
R Clough for the applicant; Miss A Foster for the respondent PANEL: Otton JJudgment One:
OTTON J: This is an application by Garip Ekinci for judicial review of a decision of the Secretary of State for the Home Department whereby he refused the applicant's application for political asylum on 6 April 1990. It is necessary to go into the particular circumstances of this case with considerable care and detail. The applicant is a 27 year old married man and is a citizen of Turkey. He is both Kurdish and an Alevite. He arrived in the United Kingdom on 15 June 1989 but, on that occasion, he was not even allowed off the plane. He was interviewed by a Turkish speaking female interpreter and, as a result of that interview, he was immediately returned on the same plane to Istanbul. However, six days later, he arrived again in the United Kingdom and claimed asylum immediately on arrival at Heathrow. He was eventually interviewed at Harmondsworth on 20 January and the usual PAQ questionnaire was completed. The record of that interview is available and was clearly taken into account by the Secretary of State who, in March 1990, indicated that he was minded to refuse the application. In accordance with the now well-established practice, the applicant was given a further opportunity to explain any matters which he felt were not properly dealt with in the minded to refuse letter and to add anything which he felt might be of interest and relevant to his application. In the event, the applicant answered at length many of the questions that were put to him and volunteered information which was recorded through an interpreter. A representative of his solicitors was also present who, following that interview, made further representations in March in a long letter. In April 1990 the final decision letter was sent by the Secretary of State to the Refugee Section indicating that he had decided that the applicant did not qualify for refugee status under the Convention and, therefore, his claim for asylum was refused. The applicant, whenever it has been possible for him to do so, has indicated to the authorities in the United Kingdom the extent of his political activity in Turkey which led to his leaving that country in 1987 when he went to Italy and the continuous pressure he had been under in Turkey because of his political beliefs and, no doubt, because of his ethnic origins. He stated that he had sympathized with TKSP, which is an illegal organization, from 1977 onwards and right up until the time of his departure in 1989; in particular that he had been active in putting up posters and distributing leaflets during that period and had helped members of the organization by providing food and finance from 1985 after he had completed his military service. He explained how he would distribute leaflets and periodicals when he was in Istanbul and the villages, and in his home village, at irregular intervals. It is not necessary for me to go into that aspect in great detail, but he did recount to the authorities how he had spent 18 days in detention in 1979 when he was tortured and questioned, no doubt under duress, about the PKK and his possible association with it. He also told them how, on another period between 1981 and 1982, he underwent some 45 days' detention for distributing leaflets in protest at the refusal to allow migrants to settle in a particular area. He gave details of how he was questioned and kept in a room with ankle-deep cold water. He described the torture that he underwent and suffered throughout this period with rheumatism. After his release, he signed on for two days at the police station and, thereafter, told the police that he wanted to return to his village because he had nowhere to stay in Istanbul. He was again detained in the summer of 1987 for distributing leaflets when he was arrested with two friends. The applicant was released after some eight days, again having been exposed to torture. He was asked about his detention on return to Turkey in June 1989 -- that is on the occasion of the abortive trip to the United Kingdom -- and he explained that had it not been for his having bribed a policeman, his detention would have been more than a formality. In the event, it would appear that he was released after about three days. He also told the authorities about the way his wife had been treated, quite ruthlessly and disgracefully, when they were searching for him in his village. He described how by the soldiers, on being told that she did not know where he was or how he could be traced in Istanbul, she was then abused. The wife was courageous enough to write to him in Istanbul, and he indicated his intention to flee the country, a decision which was no doubt heartbreaking for both of them, but she went along with it and agreed that this should be done. He also described how the applicant was forced to leave his village four to five weeks after the coup on 12 September 1980 because of the military activity and the mistreatment of villagers. Finally, and perhaps most important of all, he described how, in 1989, during the May Day demonstrations, shots were fired by the authorities and many of his friends were caught and arrested and taken into custody. He was fearful that under torture they would disclose his name and his involvement. This he regarded as the last straw. Against this background he decided to leave Turkey. That was the detailed account he gave of his persecution, his political involvement and the torture that he had suffered at the hands of the authorities. He claimed that if he were returned from the United Kingdom to Turkey, there was a serious risk that he would be tortured and persecuted again, in particular that the Secretary of State should have taken into account what would happen to him and to his wife as a result of his being returned. The way the applicant puts his case is summarized in the most helpful document which was filed with the Form 86. I have had the advantage of submissions from Mr Richard Clough who has developed the points in a very measured and telling way, and I am grateful to him for the assistance he has given me. He submits that when one analyses the approach of the Secretary of State in this case, he misdirected himself in law in considering the applicant's claim for asylum by compartmentalizing and dealing individually and in isolation with each aspect of the applicant's claim without considering his claim in the round, what he calls the cumulative effect, from which the Secretary of State could and should have inferred that there was a well-founded fear of persecution. Alternatively he submits that the Secretary of State misdirected himself by concentrating on the low level of the applicant's political involvement rather than in concentrating on the extent of the persecution for what might be considered to be such a low level of activity; in other words the low level of activity itself may not indicate the extent of the persecution, but the reaction of the authorities and the savage way that they persecuted him was the real indication of the extent to which he was persecuted. In advancing that argument, it is said that the Secretary of State failed or failed to give proper weight to the eight days' detention in 1987 irrespective as to whether the authorities on that occasion concluded that they had no interest in him politically and he should have paid more attention to the level of abuse and torture to which the applicant was exposed. Thirdly it is submitted that in referring to what the applicant said at the minded to refuse interview, the Secretary of State's comments that he did not consider that the information furnished on that occasion added anything to the applicant's claim were inappropriate. The information referred to provided an explanation for the applicant as to why he had not claimed asylum in Switzerland and an explanation of what was contained in some of the leaflets distributed by the applicant. At the minded to refuse stage, it is said that the Secretary of State disbelieved the applicant's claimed level of political activity because he did not know what the literature he delivered was about and did not believe that he had a well- founded fear of persecution because he did not claim asylum in that country. Fourthly it is submitted that the Secretary of State further misdirected himself in failing to consider properly or at all whether the applicant's three day detention on his return to Turkey in June 1989 amounted to persecution. That is, it is said, that the Secretary of State really did not deal with the point that he was so detained. Although he had been sent back by the United Kingdom authorities, and detained without trial, no charge was laid against him and no legal process whatsoever was put into effect to detain him. It was, to use the phrase of counsel, a "routine" or "random" detention of a person who was returned to his own country in the most oppressive manner. Finally it is submitted, in a composite submission, that the Secretary of State's overall approach to the asylum application has been to consider whether his level of political involvement has been such as to result in his being a wanted man. In the premises the applicant argues that the Secretary of State mis- directed himself in law in failing to consider against the full background of his treatment whether there is a reasonable degree of likelihood that he will be similarly treated in the future. It is submitted that, irrespective as to the level of his political involvement, he has been detained in the past on various occasions for long periods which are not disputed by the Secretary of State. On that basis, it is submitted that the decision-making process in this case is so flawed that the court should interfere and set aside the decision of the Secretary of State. In approaching those powerful submissions, it is necessary, in my judgment, to go straight to the minded to refuse letter which, after the usual preamble, sets out on two full pages the reasons which the Secretary of State considers that it would be appropriate for him to conclude that the applicant should be refused asylum. Miss Alison Foster rightly, I think, says that when one analyses the letter, it can be conveniently broken down into five parts which illustrate the decision- making process of the Secretary of State. I must read paragraph (a) in full: "When you were interviewed, you said that you had been a sympathizer of Ozgurluk Yolu since 1977. You said that this was the same as the TKSP, although you could not say what those initials stood for. You said that you distributed leaflets and posters from 1979-1980 and offered food and shelter to activists from 1985. Although you claim to have distributed leaflets on many occasions and you knew the names of the organisation's periodical, you were unable to give an idea of the contents of the leaflets or the magazines. The Secretary of State believes that if you were as active as you claimed to be you would know what the literature you were delivering was about. The fact that you did not does not give your claims credibility." That, in my judgment, is a very significant part of the process whereby the Secretary of State reached his conclusions. Those who conduct the interviews on these occasions see many applicants and they have to make an assessment of the credibility of the applicant and his story. It seems to me that having considered the activity and the details volunteered by the applicant, a decision was reached whereby the applicant's credibility was suspect, that was a conclusion which it was open to them to arrive at and there was evidence which entitled them to come to that conclusion. It cannot be said that the decision reached as to his credibility was in any way suspect or the inquiry improperly conducted. Thus, from the start, the applicant was in some difficulty. Paragraph (b) provides as follows: "You said that you were detained for 18 days in 1979 when you were picked up with others in your village during a search for firearms. You and others were ill-treated and questioned about the PKK. This seems to have been a random arrest, and there is no reason to think that the authorities would continue to have an interest in you as a result of this." It is to be noted that the Secretary of State does not say that he disbelieves that those events actually occurred in 1979. He has not carried over the lack of credibility which he formed in the first paragraph into his consideration of this particular series of events. The Secretary of State, by inference, is saying, on my reading of it: "Assuming and even accepting that such events did occur, then I formed the view that this was a random arrest and, despite your being under suspicion for involvement in those events, and drawing the inference that, on your own account, you probably were, none the less there is no reason to think that the authorities did or would have continued to have an interest in you after they had released you on the 18th day." On that analysis it seems to me that the decision-making process cannot be flawed. That was an inference and a conclusion which it was open to the Secretary of State to draw on the basis of the events described by the applicant. The next paragraph says: "In 1981 or 1982 you were detained with two friends in Istanbul for 45 days when you were caught distributing leaflets. You then had no further problems with the authorities until the summer of 1987 [that is a gap of some 5 years] when you were again detained with two friends for 8 days for distributing leaflets. You said you were released because your friends took the blame, but you were unable to say what the leaflets that you were delivering contained, but the Secretary of State believes that if you were as involved as you claim you would know this. He believes that you were released because the authorities realized that you were of no interest to them." Mr Clough, I accept, is right in saying that the basis for that disbelief is to be found in paragraph (a). If paragraph (a) was a belief which was without foundation, then it has no validity when considering paragraph (c). As I have indicated, if the Secretary of State was entitled to come to the conclusion which he did under subparagraph (a), in my judgment he was entitled to carry that disbelief with him when he considered the events of 1981 and 1982, a gap of 5 years, and the events of 1987. It was further open to him to come to that conclusion on the circumstances that he had described to him. The inference which I draw is that he was prepared again to accept that account on its face value. This clearly was in accordance with common sense, and he was giving credibility to the events as much as he could yet, none the less, drawing the inference that the authorities had decided to release the applicant and not his companions because he, the applicant, was of no interest to them. In other words the Secretary of State is saying that knowing how events of this nature are handled in Turkey, the authorities would not have released the applicant merely on the basis that others were prepared to take the blame but because the authorities had come to the conclusion that the part played was so peripheral and of little importance that the applicant was of no interest to them. This again seems to me a decision-making process which was entirely within the capacity of the Secretary of State. The manner in which he reached his conclusion was impeccable, and the conclusion itself cannot be said to be perverse. At paragraph (d) the letter continues: "In November 1987 you left Turkey and went to Italy for one month. You did not claim asylum here, which leads the Secretary of State to believe that you did not have a well-founded fear of persecution due to the incidents that had occurred in Turkey before that date." Here I think one has to follow through with what occurred on the interview which followed the minded to refuse letter, and I shall do so in a moment or two. To complete the letter, at (e) it reads: "You said a policeman who was a friend of yours helped you in and out of the country [that is of course referring to the events of a few months earlier in June 1989]. The Secretary of State notes that although you claim he is a friend, you can only remember the policeman's first name. He does not find your explanation credible and believes that you had no problems leaving or entering Turkey because you were not wanted by the authorities. Similarly, with regard to your return to Turkey from the UK in 1989, you claim that you were detained, but not ill-treated, on return and that there was no more than a formality only because you had paid a large bribe in case you were returned. The Secretary of State does not believe that you were a wanted man and he does not accept that you would have been treated any differently if you had not paid a bribe." The conclusion is then set out. It seems to me also that in dealing with this ground under (e), and the attack upon it mounted by Mr Clough, it is again necessary to consider how this was dealt with at the subsequent interview. He was asked: "(Q) Is there anything you wish to say in response to the Secretary of State's provisional decision? (A) Yes. The first time I came to this country, I paid 4 1/2 million TL as a bribe to the policeman who helped me to leave Turkey. I paid him the money in order to guarantee a safe trip and ensure my safety if I was ever sent back. Since passengers had had difficulties leaving Istanbul airport and I did not want this to happen to me. On my return to Turkey, my passport was kept by the pilot. (Q) Did you mention this at your previous interview? (A) Yes. (Q) Have you any new information to give? (A) If I was not a wanted man in Turkey, I would not have come to this country for a second time. I have been here once and sent back to Turkey and I returned to the UK six days later. I would not have returned if I had not been a wanted man. When I arrived in Istanbul, my passport was not returned to me. It was kept for 3 days and was not given back to me. I was taken to the police station straightaway. The policeman who I had previously contacted returned my passport to me 3 days later. I was not ill-treated. I do not know how the policeman got hold of my passport." Then he carries on with that particular matter. Later he is asked: "(Q) Any further, additional, information to give? (A) Yes. Again I did not think it was necessary or relevant. When in Italy I wanted to go to Switzerland or Germany to seek political asylum. My elder brother is in Switzerland and he stated that he could help me. Somehow my brother was unable to help me get from Italy to Switzerland. The reason why I did not seek asylum in Italy was because the Italians did not accept the applications. I was worried that if I applied and was refused, then I could be sent back to Turkey which I was afraid of. (Q) Did you actually apply for asylum in Italy? (A) No. (Q) Why not? (A) Because I was afraid of being refused and sent back to Turkey. (Q) Surely if you did not apply you would be returned to Turkey anyway? (A) Another policeman helped me in Istanbul Airport. (Q) What did you have to lose by applying for political asylum in Italy? (A) Afraid of being sent back to Turkey because applications for asylum were being refused. My intention was to go to Switzerland." Later he was asked, at the end of the interview, whether he wished to add anything further, to which he replied: "(A) I was not deeply involved in politics. I was only distributing leaflets in the shanty town. These leaflets were protesting against the demolition of the shanty town which had started from 1977 to 1983. My house was knocked down in Birmayis in Istanbul. (Q) Why not mention this before? (A) I have mentioned this before but did not include my own house. The destruction of my house led me to distribute the leaflets typed and copied by my friends. My house was demolished in 1979. The building of it had not been completed by then." That was how the matter was left on 16 March. Thirteen days later, the solicitors acting for the applicant, a representative of whom had been present throughout the second interview, wrote a comprehensive, detailed and careful letter. One knows only too well the services that this particular firm of solicitors provide for the wretched people who are seeking political asylum in this country. Clearly the person who had attended was sensitive to the answers that had been given and which he or she thought might be troubling those responsible for making the final decision. Thus, understandably, they took up in the letter some of the points that had been raised and took the opportunity to put the most favourable interpretation on them. And, in doing so, they took into account the precise terms of the minded to refuse letter, a copy of which would of course have been handed to them at the interview. It is necessary for me to refer to that letter in detail. At paragraph three the author writes: "The Secretary of State has formed the view that our client's lack of detailed knowledge of the political literature he distributed throws doubts on his credibility. Mr Ekinci made the observation during his PAQ interview that he has very little formal education and this clearly affects his ability to read and understand political literature. Mr Ekinci is not a man who has become involved in left-wing politics as a result of an intellectual or theoretical conviction and has never pretended to be such. He moved to Istanbul in 1977 because he experienced oppression as a Kurd in his village. In Istanbul he found employment in a garage where he met with other workers who were either sympathisers or members of TKSP. He agreed with its aims in the broadest sense and became a sympathiser through his contact with other activists. As he said in his PAQ it was in the period from 1979 that he began to distribute leaflets. This was because at that time he had been building a house in the "May Day" shanty town area of Istanbul, and his house, along with many others, was destroyed before building work was completed. He distributed leaflets as a response to what he saw as brutal behaviour by the authorities and enforced homelessness of himself and other poor, predominantly Kurdish people. From 1979 onwards the struggle between homeless people and the authorities in the May Day area continued as people built homes and the police systematically destroyed them. In short, Mr Ekinci's involvement in politics comes from his direct experience of oppression, but his lack of education has not and will not preclude him from detention and persecution at the hands of the Turkish authorities. Secondly, the Secretary of State refers to Mr Ekinci's detention in 1979 in his village. He agrees that this was a random arrest and that he was not a wanted man at this time, but became so later. With regard to his arrest in 1987 Mr Ekinci was detained in a cell, together with his two colleagues. As a result of this they were able to discuss tactics before the interrogation began. At that time, Mr Ekinci's main role was to provide shelter to men who were in hiding. He was not himself in hiding at this time. He was working, albeit on a casual basis and was thus financially more secure than many of his friends. The two friends with whom he had been arrested were already wanted men at this time and living fugitive lives. The three of them made a pragmatic decision, as people are forced to do in such circumstances, that Mr Ekinci was more use to the party outside because he had a little money and could help other fugitives, whereas the other two men were in more extreme circumstances and were, in any event, unlikely to be released. It was for those reasons that it was agreed that they would take the blame in order to free Mr Ekinci to continue his work." I interpose to say that the solicitors were confronting the Secretary of State with the full details and a much more favourable interpretation of the events set out cursorily in paragraph (c) of the minded to refuse letter and were stating the case in the most forceful terms on behalf of the applicant. I continue: "Mr Ekinci dealt with details of his visits to Italy in some detail at his minded to refuse interview. For completion we will reiterate briefly that he went to Italy intending to continue to Switzerland where his brother was living in order to claim asylum there. At that stage it was not necessary to obtain a visa to go to Italy and it was a route commonly taken by asylum-seekers to either Switzerland or France. As Mr Ekinci has already explained, the plans broke down and his brother was unable to help him. He says that border crossing was largely handled by agents such as the Mafia, who did this work to make money. He thinks it was these people who let his brother down. He did not want to risk a failed asylum application in Italy as he would then be deported to Turkey and his passport would be handed directly to the authorities, making it far harder for him to return unnoticed. This is of course what happened to him after his return from the United Kingdom in 1989. At his PAQ interview Mr Ekinci said that the policeman's first name was Mustafa, he does know this policeman's surname, but for security reasons he is not able to tell us. He advises us that he knew this policeman quite well, that he had his home phone number and called him from Italy to explain to him that he would have to return to Turkey." Here again the solicitors are taking the opportunity to meet the approach of the Secretary of State as reflected in paragraph (d) of the minded to refuse letter. Quite clearly, in my view, the way that they approached and interpreted the interview, and the explanation which was given as to why he did not apply for political asylum, is, if I may say so, a much more convincing and acceptable explanation than the way in which the Secretary of State appears to have approached the matter in the minded to refuse letter. For my part I can well understand how it came about, if true, that the applicant did not make an application for political asylum to the Italian authorities when the arrangements to go to Switzerland had broken down. His state of mind was that an application was unlikely to succeed. He felt that if he was going to be returned to Turkey forcefully, he was likely to be less favourably received than he would be if he were to return under his own resources. It is perhaps significant that this decision was a wise one because he was only detained for some three days and in fact had his passport returned to him. The letter continues: "The last issue raised by the Secretary of State concerns Mr Ekinci's return to Turkey from the United Kingdom in 1989. The Secretary of State does not accept that Mr Ekinci was a wanted man at this time. Mr Ekinci explained both in his PAQ and in his statement to us that his name was given to the police after the 1989 May Day demonstration in which a group of his friends were arrested. He knows this because the authorities visited his house in order to arrest him. He was not there when the police came, but they questioned his brother who was a successful self-employed builder in Istanbul. Mr Ekinci did not return to his house after this time apart from coming for a few hours very late at night to visit his brother before leaving Turkey. Had Mr Ekinci not been a wanted man he would not have been imprisoned on his return to Turkey. It is not normal procedure for Turkish passport holders returning to Turkey to be imprisoned on arrival unless they are wanted by the authorities. Mr Ekinci has given a consistent account of his history throughout the considerations of his asylum application. He has shown some confusion regarding the date of issue of his passport and of his visit to Turkey, and has agreed that he is uncertain whether his long detention of 45 days took place in 1981 or 1982. This uncertainty quite clearly springs from his lack of education and consequential lack of reliance on written forms. There is no indication of any inconsistency indicating a lack of credibility. We are of the view that our client has clearly demonstrated that he has a well-founded fear of persecution in Turkey for Convention reasons and that if he were returned to Turkey from the UK for a second time, his detention would not be a formality. We therefore request that Mr Ekinci be granted asylum to remain in the UK." What I have to consider, particularly in the light of Mr Clough's submissions, is how the Secretary of State dealt with the further information which was supplied in the minded to refuse interview and through the medium of the letter from the solicitors dated 29 March. In the following month, the Refugee Section gave the final decision in the decision letter itself in which it is quite apparent that they had taken into account the further information supplied at the interview and expressly acknowledged the receipt of the letter of 29 March. The relevant parts of the decision letter are as follows: "At interview you repeated that you had paid a bribe when you left Turkey in June 1989. You said that when you returned, your passport was held for 3 days before the policeman you had bribed obtained it and offered to arrange your passage back to the United Kingdom. You said that when you were in Italy you did not apply for asylum because you thought you would be refused and removed to Turkey. You had hoped to get to Switzerland, but this was not possible, so you returned to Turkey. You said that you were not deeply involved in politics and had only distributed leaflets in the shanty town protesting against the demolition of houses. The Secretary of State does not consider that this information adds anything to your claim." Pausing there, what the Secretary of State is saying, in my judgment, is that he has taken into account the added information which was volunteered by the applicant at that stage. He has considered it and has given such weight to it as he considers appropriate. What weight a Secretary of State applies to any further information is entirely for him and not for the courts in its supervising role. Accordingly I am satisfied that in coming to the conclusion the Secretary of State did consider the additional information and concluded it did not add significantly to the claim. In doing so he was acting within the four corners of his powers and there was information before him which entitled him to come to that conclusion. Accordingly, I cannot see any ground for this court interfering in respect of that criticism. The Secretary of State then went on to consider the representations in the solicitor's letter as follows: "They acknowledged that you were not heavily involved in politics, but you were influenced by your work colleagues' sympathies with the TKSP. You started to distribute leaflets when the house you had been building was destroyed. The Secretary of State has noted these comments which confirm his view that you were not as politically active as you claimed at your first interview and he does not consider that the authorities would have any interest in you as a result of your political activities." Now that latter sentence, as Miss Alison Foster, in my view, accurately states, embodies the Secretary of State's overall conclusions. In other words he is saying that he is taking into account all the matters that have been put forward by the solicitors and, in particular, the detail in which the applicant's own house had been destroyed. He has taken into account all the comments which were advanced during the interview itself as well as in the letter and, this notwith- standing, he has confirmed his view that the applicant was not as politically active as he had claimed at his first interview at Harmondsworth before the minded to refuse letter was composed. He goes on to say that he does not consider that the authorities would have any interest in him as a result of his political activities. In coming to that conclusion it would be quite legitimate for the Secretary of State to bear in mind the adverse conclusions that he had formed as to the credibility of the applicant during his first interview and which are reflected undoubtedly in paragraph (a) of the minded to refuse letter. What weight he attached to the lack of credibility, in the light of the further representations made at the interview and contained in the letter from the solicitors, must inevitably again be a matter for the Secretary of State. In the absence of any ground for interference by the court, the court must refrain from doing so. However, other matters have been raised in the letter which the Secretary of State felt obliged to deal with. The letter continues as follows: "Your solicitors agreed that your arrest in 1979 was a random one and that you were not a wanted man then. They claimed that following your arrest in 1987 you and your friends discussed tactics and decided that they should take the blame for distributing leaflets, so enabling your release because you would be more use to the party. The Secretary of State has noted this, but does not believe that this is likely to be true. Given your lack of political knowledge he considered that it is more likely that you were released because the authorities genuinely had no interest in you, rather than due to the 'tactics' allegedly employed by your friends." In this passage the Secretary of State is adopting the same reasoning process which he had in his minded to refuse letter. He has taken into account the further representations and arguments addressed to him on this particular and important point, but he has come to more or less the same conclusion. It seems to me that it is open to the Secretary of State to approach the matter both on the basis of credibility and on the balance of probabilities and he has reached the conclusion that he has on that basis. Again it is impossible for this court to say that that reasoning process is flawed in itself or in its conclusions. He then turns to what has always troubled me about this case, namely the explanation and the reaction to the explanation as to why he never claimed political asylum on his arrival in Italy. The Secretary of State deals with it in the decision letter in this way: "Your solicitors repeated your reasons for not claiming asylum in Italy. They further said that you did in fact know the identity of the policeman who helped you get back into Turkey but you could not reveal it for security reasons. Given your previous account the Secretary of State does not accept this is true. Your solicitors said that if you had not been a wanted man you would not have been detained when you returned to Turkey in June 1989. However, the Secretary of State notes that you had previously regarded this as no more than a formality and he believes that this is what it was. He does not accept your solicitor's claim that you were wanted. The Secretary of State accepts that some Kurds and Alevites from Turkey are refugees but does not accept that all are refugees irrespective of the merits of their claims." Here the Secretary of State has not dealt as fully as one might have liked to see with the detailed reasoning set out in the letter from the solicitors, and the explanation which appeals to me as to the reason why he returned from Italy voluntarily rather than as under a condition of enforced repatriation or deportation. Even though the Secretary of State has not dealt with that precise point in any detail, he has taken a broader view and said that, given the applicant's previous account, the Secretary of State does not accept the reasons and the explanations to be true. It may be that I would be prepared to accept that they might be true, but that begs the question: the function of this court is not to consider the evidence placed before the Secretary of State and to come to a conclusion which is opposite to or inconsistent with the conclusion of the Secretary of State. I have to look at the evidence which was available to the Secretary of State and to see whether that evidence could form a basis for the decision in fact reached. In spite of my misgivings as to the way that this particular aspect was dealt with by the Secretary of State, I have come to the conclusion that I cannot say that the decision of the Secretary of State was perverse or that it was one that if he had fully set out the reasoning process and all the matters before him he would necessarily have reached a different conclusion. I turn then, with that analysis of the history of this matter and the inevitably detailed account of the interviews of this applicant from his arrival at Heathrow until the final decision of the Secretary of State given in the letter of 1990, to consider the grounds upon which Mr Clough has advanced the argument today. Dealing with the first point, it is true in a sense that the Secretary of State, in reaching his conclusion, did appear to adopt a compartmentalizing process dealing individually with the matters which had been raised in the course of the initial interview and then dealt with it on a separate basis at the second interview and, indeed, in the letter written on his behalf by his solicitors. However, I do not consider that by adopting that approach the Secretary of State fell into error. It is quite clear that the Secretary of State has to consider whether the applicant has made out his case, that he has a well-founded fear of persecution if he were to be returned to his native Turkey, particularly bearing in mind that he is a Kurd and an Alevite. When one looks at the decision-making process, I am satisfied that even though he approached many of the matters on an individual basis, the overall effect was that he did consider on a cumulative basis the application for political asylum. The fact that he chose to approach it by breaking down the various items in the way that he did was a method which was open to the Secretary of State, and it would not be appropriate for this court to query or to question the approach of the Secretary of State in that regard. I turn then to the second ground, that the Secretary of State misdirected himself in law by concentrating on the low level of the applicant's political involvement in Turkey and thereby failed to consider or give proper weight to the type of persecution that he suffered in Turkey at the hands of the authorities; in other words that the Secretary of State fell into error by looking too closely and by concentrating on the low level of the actual political involvement instead of concentrating on the savage persecution, torture and repression which was meted out not only to him but also to his unfortunate wife. There is some force in the argument that the savagery of the repression here is a greater indication of the applicant's political involvement than merely scrutinizing the extent to which he is prepared to admit to subversive behaviour. In coming to the conclusion that he did, the Secretary of State would inevitably have looked at both aspects of the problem and would have formed his own judgment as to whether the level of political involvement and the sanctions imposed by the authorities indicated a well-founded fear of persecution if he were to be returned to Turkey. Accordingly I refuse the relief asked for on that ground. In the third ground it is averred, in referring to what the applicant said in the minded to refuse interview, the Secretary of State's conclusion that he does not consider that this information adds anything to the applicant's claim, has already been dealt with and does not require any further explanation by me. It is also said that the Secretary of State irrationally disbelieved the story about travelling to Italy and the fear of persecution that he had at that time and the explanation that he did not seek political asylum in that country at that time. I have already dealt with that aspect and indicated that my reaction to that particular part of the decision-making process is more favourable to the applicant than that of the Secretary of State, but I do not consider that an appropriate reason for interfering with his decision. In ground four it is contended that the Secretary of State again misdirected himself in law in failing to consider properly or at all whether the applicant's three day detention on his return to Turkey from the United Kingdom on his first arrival here on 15 June 1989 amounted to persecution. I have given great consideration to this particular point. Mr Clough has mounted a powerful argument that the Secretary of State might not have appreciated that for a person who has to be returned to his own country voluntarily, the process of retaining him for three days in custody without trial or adjudication, or any apparent legal justification, was oppressive. This was a matter which should have been given greater consideration by the Secretary of State and, if so considered, it should not have been brushed aside in the way that it was. However, the Secretary of State must be fully aware of the procedures which await a returning Turk particularly when he is a Kurd and an Alevite. I have no doubt that the Secretary of State gave full consideration to this particular point, although the way that that matter was expressed seems to do less than justice to the applicant and the plight he was in, particularly as he had chosen to return to Turkey of his own volition. In those circumstances I have come to the conclusion that giving the full weight that I can to this criticism does not amount to a ground upon which this court would be justified in interfering with the Secretary of State's decision. These cases are always difficult and cause the greatest anxiety to the court. This is the last occasion when this unfortunate man has any hope of the due process of law of this country taking effect. This court is fully aware that, as a result of this decision, the probability is that he will be shortly returned to Turkey. I am aware that he is a Kurd, one of a repressed minority, and an Alevite by religion. It is for that reason that I felt it appropriate to go into this case with unusual length and detail so that I am satisfied, and those who have been acting for him so assiduously are satisfied, that every aspect of his case has been considered by the court of last resort. I have no hesitation, however, in saying that there is no ground upon which the decision of the Secretary of State can be impugned and, accordingly, the application for judicial review must be refused.DISPOSITION:
Application dismissedSOLICITORS:
Winstanley-Burgess, London EC1; Treasury SolicitorDisclaimer: Crown Copyright
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